case series, we look back at the griswold v. connecticut case. then a look at the life and legacy of ricky magazine founder and commentator william f buckley. all persons having business to for the honorable supreme court of the united states give their attention >> landmark cases, produced in partnership with the national constitution center. exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> mr. chief justice and may it please the court. >> quite often in many of our most famous decisions are ones that the court took on to fight the unpopular. >> let's go through a few cases

that illustrate dramatically and visually what it means to live in a society of different people who help stick together because they believe in a rule of law. >> good evening, tonight's landmark case is the 1965 griswold v. connecticut. with a seven-to decision the justices established the constitutional right to privacy and set in motion the expansion of privacy rights that continue to today. to give you a sense of its continuing importance in our society, we put together a short video that has modern-day references to the griswold case. let's watch. >> griswold v. connecticut, which recognizes the right to privacy and the constitution. >> i agree with the decision that marital privacy extends to contraception. >> griswold v. connecticut. >> back in the 60's, there was a

case known as griswold v. connecticut. >> let's talk a little bit about griswold. >> what is it about griswold v. connecticut that gives it importance? we will learn about its history. and the interesting people behind it. a professor from george mason and her latest is putting children's interests first. rachel is a law professor and dean for research from temple university. let me ask the basic question, why is griswold so important? >> it was a landmark case when it was decided in 1965.

five years after the birth control pill hit the market. it is a landmark case now because it set the path for cases deciding abortion rights, sexuality, sexual expression, same-sex marriage. it is a warning to states about how to use the criminal justice system and police people. >> what are your thoughts about the landmark case? >> it is a declaration of a right of privacy which is not in the text of the constitution and all of the justices discussions of is it safe for judges to be defining rights that are fundamental and not in the text of the constitution? how do we find these? how far do we go? and it set the path as rachel said for the decisions on sexual expression based on privacy.

>> is there a conservative consensus about griswold? >> no. i would say there are many people, citing many of the cases griswold cited parents deciding about kids' education, a lot of conservatives would say yes, those rights exist. some would say it is always dangerous when justices discover a right that is not in the constitution. how far will they go? >> is there a liberal view? tied the right to contraceptive use to a wider discussion and over the years, that agenda has been more closely associated with the women's rights movement and with feminism and women's equality

and politics in the workplace. >> is that a consensus? >> i think when you ask those who consider themselves progressives, wide it is important, they would come up with those reasons. >> there was an interesting cast of characters. the namesake is estelle griswold. who was she ?estelle griswold is a woman who has an interest in the availability of contraception. she was married to someone in the state department and has done some international work. she decides connecticut's law is old-fashioned and should be done away with and she decides to form a clinic and violate the law and get before court and get it looked at once and for all. >> we are also going to meet dr. buxton. who is he? >> he was the chair of the

ob/gyn department. the only medical school that was decided and he came up with the strategy that would become griswold v. connecticut to strike down the ban on contraceptive use. he had a personal responsibility to patients he saw suffering from pregnancy complications that could not accesss legal contraceptives. >> there is a female lawyer. who is she? >> she is a real figure in history. she was the only woman in her class that graduated yale law school. she was associated with a number of significant lawsuits, including not only this case, which she worked on through the supreme court. she did not do the arguing but she took it to the connecticut supreme court.

she was later associated with the defense of the black panthers. she felt very strong about women's rights and access to contraception. >> our last in the cast of characters, is thomas emerson. >> he argued the case for the griswold legal team before the supreme court. he took over from one of the original engineers when professor harper fell sick. >> you were talking before the program started about the yale connection. so many aspects intersect with with yale. is it a coincidence? >> yale has been a preeminent law school for a great deal of time and probably, you could say known at this time for being unafraid. it did controversial things and this was indeed controversial.

you have griswold married to someone from yale. you have dr. buxton on the faculty of yell, emerson on the faculty of yell. she had family who went to yale, so quite a few links. >> also, apparently estelle griswold would have a mean martini and it was during a cocktail party that one of the strategies came. there is that. >> this was referred to as a comstock law. >> it was passed in 1873. it is named after anthony comstock. he was a postal worker but founded the new york society for the suppression of a voice. vice.

at some point, he famously bragged he confiscated 160,000 pounds of books, 95,000 articles , implements for immoral purposes. his words. the comstock law makes it a crime to mail contraceptives to, information about them, more information on how to find out about contraceptives. that is the comstock law. >> this is 1873. we are talking about a case from 1961. were comstock laws on the books in a lot of states at this point? >> about 24 states. some states came in later. more than half at the time. connecticut goes on the book in 1879. fascinatingly, the state

representative pt barnum. yes, barnum and bailey circus. by the time the case comes around, really only connecticut and massachusetts have these laws on the books. the federal law was concerned with mailing. connecticut's law is concerned with people who use them and concern with people who aid and abet them. that's would be the medical authorities. that would be the medical authorities. >> in about 10 minutes, we will go to your phone calls. we look forward to your comments. if you live in the eastern or central time zone, you can also send us a tweet. there is a session underway on c-span's facebook page. you can join the conversation there. please do get involved on this

discussion. griswold v. connecticut established the right to privacy not enumerated in the constitution. some of the text of the connecticut law read this way. any person who uses any drug for the purpose of preventing contraception shall be not fined less than $50 or imprisoned, not less than 60 days nor more than one year or be fined and imprisoned. in reality by 1960, how often was this law enforced? arrested?e getting >> it is hard to arrest someone for the use of contraceptives, so that is where part of the statute that made it a crime to aid and abet is really important. by and large, people were not getting arrested. spermicide was available for the purpose of disease prevention. as long as you sold a

contraceptive device for other than contraceptive reasons, it was legal. of course, that is not including the diaphragm. or the pill. those are still hard to come by. were people being prosecuted? no, but in 1940, a clinic was raided. they went before the connecticut supreme court and lost. the court said there are no exceptions even for doctors 'prescriptions. they said the doctors had been told that writing prescriptions would be an exception based on other cases in other states. the supreme court held that was not the case and there were no exemptions. there was no appeal to the supreme court.

>> there were federal efforts to overturn connecticut's laws. >> 1961 close to our mr cases, , what waso our case happening? >> the doctors were arguing that the patients life was at stake. in 1961, they wanted to clarify judgment that the law could be used against them. nobody has been arrested or convicted, and so it is just the -- ripe.just not right if you look, you have yourself a griswold in miniature. you can track so much of the language that said that it is right.

and here's how i would decided if it came before me. >> we have a regular viewer of our series that writes that the penal aspects of the comstock laws are rather ironic insofar as a stint in prison is another way to prevent conception. we get to 1961, here's a headline in the new york times. connecticut clinic's to test birth control laws. there were a group of people in connecticut who wanted to put this law to rest. what was the role of planned parenthood? >> planned parenthood had recruited the three patients that would become the petitioners led by dr. buxton. she was instrumental in signing the patients and deciding on the strategy. planned parenthood was instrumental in figuring out

that once the supreme court dismissed because of lack of prosecution, it was planned parenthood that was the engineer of the strategy to set up a clinic so the medical director could get arrested to test the connecticut law. >> planned parenthood was operating around the state this point? >> griswold had set up a planned parenthood there. i think there had been others in the area. >> they had a number of clinics operating throughout the state and in the case that i mentioned, state versus nelson, they all closed after that case and they started setting up clinics for educational purposes. and to lobby the legislature. the new haven clinic is the

clinic that started prescribing contraceptives. before that, other clinics were just doing educational services that were not banned by the law. estelle griswold reportedly drove around the state with diaphragms in her car trunk as well as planned parenthood was key in helping women get across state lines. they could get contraception legally in other jurisdictions. >> we have video from the 1962 report by cbs. what is great about this is you will see dr. buxton and estelle griswold describe how they put this together. >> how did you become involved in this case? >> i'm interested in taking care of patients in this institution

and when i'm prevented from taking care of patients by a law that exists, i believe that something ought to be done about it. if a woman can afford to go to a private doctor as a private patient, she can get contraceptive advice in connecticut, but if she hasn't money to go to a private doctor, if she is a patient in our clinic here for instance she , cannot get contraceptive advice here because you're not allowed to have a family planning clinic. they are really the ones that need the advice from a social economic and health point of view and they are being discriminated against because of their economic status. >> as you said, people that can afford it can go to a private physician. how many people would you say are breaking the law?

>> connecticut has one of the lowest birthrights in the united states. >> this is estelle griswold. >> i think it is evident that the law is unenforceable. if you had a police man under every bed they still could not prove anything. we are continuing, maybe illegally, but we are continuing our program of education. many women call in for information on where they can get help and for the past four years, we have been subsidizing these centers financially for quite some time. i would say that we've had approximately 20,000 women go

out the last four years. >> some interesting aspects of that. both of them making the economic argument. what is your reaction to that? >> over the years, the poor and minority women asked the question, when buxton said these are the people that really need it. even today, there is a question as to whether some poor and minority women feel like people that are better off want them to have it. you have the controversy over president nixon's memorandum saying we need to contraceptive the third world. the debate in the 1990's when they were giving a contraceptive to poor women in cities in exchange for money or gift cards. the economic argument makes a lot of sense.

they say people cannot afford children, but it also has a bit of a backlash. >> i think there is a complicated story. reproductive justice advocates have made it a centerpiece of their advocacy to talk about how certain projects really targeted women of color and at the time, they are not just repealing, they are surpassing laws creating programs to provide family planning. there is a population movement , a population control dynamic happening. that said, i think it is fascinating that one of the understudied parts is the clinic saw itself as providing economic

justice for its clients. there was a public clinic and they were serving women who could not afford doctors, could not get in a car and drove -- drive to rhode island and the message about curtailing poverty and poverty's affects on reproductive choices is an important one that even with its darker side is something to think more about. >> going to pause and take some calls. first is peter from pennsylvania. >> thank you. i can't believe my good fortune to speak to you. this case really fascinates me and for a long time, i thought it was a case about reproductive choice and reproductive freedom. family planning, etc.. i have since learned it centers on privacy.

this really confounds me because here we are over 50 years later and i'm like where's my right to privacy? why has this not been extended? as you said i live in pennsylvania, i'm pretty sure that if i grew certain plants in my home, especially cannabis for my own use, i could get in trouble. if i set up a device to make my own whiskey. i'm sure i could get in trouble for that. i am not a smoker but as far as i know, i might get in trouble tobacco without paying taxes and getting permits. please, why has griswold v. connecticut not been used to expand everyone's privacy rights and put an end to the insane war on drugs? >> thank you for your call.

>> i think one answer is the right to privacy articulated in griswold, the court confined that right to privacy to personal relationships in many , sexual expression and here i'm talking about a trajectory of 1965 to 2018. a lot of what you are describing the court has said implicated business affairs. you may not be satisfied with this answer, but the court has made that distinction. privacy has its limits. >> josh is up next. >> how consequential was william douglas not just in this case,

but the supreme court? >> i think his being consequential has a lot to do with this case because he articulated a right to privacy that was not in the text of the constitution and indicated an opinion on behalf of living constitutionalism. when i went back and reread his dissent in this case, reread his opinion in griswold, i was struck about a living constitution are still in today. i would defer to others as to later cases that he was a part of because i do not know them quite as well. >> any comments? >> justice douglas's opinion, i think he was significant on the court.

but the griswold for -- griswold opinion has been criticized and ridiculed. i think history has been much kinder and his opinion was saying something important about core privacy rights. >> next up is julia from palo alto. >> hi. you talked about the foundational role of recognizing a right to privacy that has been extended to the rights of unmarried people to access abortion and so on, some have opined that the right to an abortion might be more appropriately confined as inequality right.

the same could be said about the ability to become pregnant. can you hypothesize as to the legal implications in the policy issues? >> i think had it been done under equal protection and then had the lawrence case, had the same-sex marriage case been done, she is not alone in thinking that it might have had a firmer foundation and part of that is the fight over how you look at a constitution and find a non-textual right, that fight is so hot, but the question about equal protection is slightly less hot i think that

possibly ginsburg is right, row have had a firmer lawrence and the letter may test the later case might have seen to have a farmer foundation. the state would have articulated its interest against the unequal allocation against rights and it would have been harder for the state to do so. >> you said earlier that the earlier case needed, so we will learn that part of the story. we will listen to dr. buxton. she was part of this case and she will explain how she came to be part of it. >> i was the witness against the doctors. i got involved through the yale law school. and it seemed at the time it is difficult to find a witness.

you needed a married woman whose husband did not object and could stand up and give evidence. i was examined by dr. buxton, given further advice. we had gone directly to the clinic and the police station. yes, i did go to the clinic and see dr. buxton. it was very straightforward. we accepted advice, but did not actually use it. the police sent us away to come back tomorrow and say that this had also been used. >> this is proceeding step by

step, there's another aspect, even though the folks in connecticut were planning for this, did not count on. to this newsain report about a neighbor who got involved and we will learn about his role in setting the wheels in motion. >> i'm 100% against birth control because it is immoral. it is the same as prostitution, abortion or any of those other immoral things. when rock 'n roll came to new haven, the mayor of new haven threw them out of town. probably every city this side of the mississippi thrown out of town because he was against hurting children. when birth control came to the town, what did the mayor do? he said, that is not my department. call the police department. the police department says, i will call the prosecutor.

prosecutor says we are not accepting your claim. i had to finally go to the press, to the radio and everybody else. i was finally allowed to file a complaint with the chief of police. just an ordinary citizen with five children who was neverjusth five children who was never elected to office. i had to go to chief of police and file a complaint. >> what do you think of mr. morris and his role? >> i always like to make sure we do not judge people from the past by our same standards. he was not alone in this. the attorney for connecticut was making similar arguments about morality. i want to say it is the anglican or the episcopal church, only 30 years before a declared contraception ok and for married couples. this was a very different time and things were changing drastically. as rachel points out, the invention of the pill and all

else that was going on in the 1960's. a lot of people were frightened about all the changes. he was not alone. >> connecticut found itself in court over this case. what happened? >> they lost. planned parenthood lost in state court. before the supreme court in connecticut. the connecticut supreme court refused to reconsider arguments. they decided, saying the law was not unreasonable or arbitrary. it was a proper exercise of the state police powers. so planned parenthood appeals to , the u.s. supreme court. it was ready to your the case. >> katie was an important part of this part of the process. can you talk about what her role was? >> she was the main attorney in the courts in connecticut.

she filed very forceful arguments. introducing the idea that this was a violation of people's rights of privacy. previously, the arguments were more about this is a threat to people's life if they do not use contraception. she is now introducing the idea that people have rights that may not be articulated in the constitution but they are important for personal freedom. >> martha is a professor at him -- emery law school. there is a terrific archive of her professional work at emory law. i had to put in that plug because it is a wonderful resource. >> the new york times, january 18, 1963, had the headline, too loose appeal on birth control. the proponents of the repeals decided to try again

legislatively. it went to the connecticut legislature, the house passed a bill repealing the law in 1963. what happened in the senate? >> it loses in the senate. it was a very catholic senate and they did not believe in it. that is a very interesting conversation by itself. one of the things i noticed is when you look at the earlier case, one of justice douglas's statements is, do not worry about the catholics on this. he says, there are plenty of catholics that understand this is a private, moral thing and they do not think you need to have a law that goes into people's bedrooms. there was a dispute among catholics and it ended up showing up in the connecticut senate, which refused to pass the law. others thought the law should reflect a moral opinion. >> on twitter, he asks not so much about catholics but how the

-- how did the catholic church respond. do they respond in a forward way? >> there was a debate. if you go look at catholic literature at the time, you see john courtney murray, some people may have heard of him. he is a very famous catholic theologian. he is responsible for the vatican documents that say religious freedom for everyone is a good thing. he writes and douglas quotes him. he quotes this catholic guy in his dissent and says courtney murray understands the difference between something that is privately a moral matter but should not be enforced by the law. this is not a law that anyone should support. other catholics thought the law should uphold a standard of morality. people are more likely to be promiscuous. they separated the idea of babies and sex and we should hold the line in connecticut.

>> i'm going to take a few more calls. next up is john in fort wayne, indiana. caller: full disclosure, i am a retired attorney and i remember we learned about this case in constitutional law back in 1976. what i was remember about this case is the numbers. it is a pretty short opinion but it came up with this right of privacy no where in the constitution. i don't think anybody should disagree. it was a dumb law, it never should have been passed. we look back today and i can't imagine any state would have such a law. buffer nine unelected judges to decide through numbers there is this right of privacy, which means we have to declare this the realutional --

argument should have been to the legislature. they are the ones that should argue get rid of the law. it still baffles me that mine of -- that nine unelected judges can use this to find some right of privacy nowhere in the constitution. >> we will let that stand as a comment and go on to jeremy, washington, d.c. >> good evening, huge fan of the program. so glad that c-span have come back for a second season. my question relates to the piece where dr.ad from cbs buxton talks about the economic inequality affects that the law had. you and your guests had talked about how women who had means to see a private doctor would not be affected by this law. it seems to me the law would equally apply to private as well as the public clinic. i am wondering what the basic of the statement was? >> i think dr. buxton was

referring to the illegal practice of private physicians writing prescriptions for women, or providing women with contraceptives under the table. that if you knew where to go and who to ask, as with any type of service that is on the illicit market, or is something that you would pay for not provided by law but is accessible through other means, you could find someone to help you if you had enough money and information. >> gary is in new jersey. caller: i have a question, but first a comment. as far as the catholic response, six968, pope paul the declared opposition to birth

control in his paper. to follow-upment on the earlier question. i came across this ruling when researching the history of discovery of the birth control pill. the ruling was, in griswold, it surprised me that it only applied to married couples. the supreme court had a make a separate additional ruling seven years later that made it apply to all women married and unmarried. it struck me as odd. my question is, was the supreme court much different seven years later? why did they not make the original ruling to cover all women, not just married women in the first case? that is my question. >> interestingly, the connecticut law applies to unmarried women and men as well. planned parenthood decided to press the marital issue because they thought it was the stronger

argument. the stronger anchor for privacy rights or rights to health or life and liberty. at oral argument the justices , pressed emerson who argued for isn't this athood, equal protection problem? you're only talking about married people, shouldn't you be talking about unmarried people? the court decided not to take up the equal protection issue. they decided to take up the privacy issue for married persons. i think there are some thinking that it was a way to cabin the privacy right at that point in time, but the oral argument hints that it was always likely to give way on equal protection grounds across the marriage-unmarried lines. >> if i could add to that, i think you picked your plaintiff. at the time, the public was not going to be very enthusiastic about rights to contraception's for single persons. the idea that responsible

married people wanted to determine the numbers of their children would get a lot of support. if they had gone in from the first with rights to single persons, there is the problem. it was very easy for the right of married people to trust states issues. preventing couples of having adultery. the state interested not seem as strong. on the other hand, if the state is prohibiting distribution to single persons, they might have made a case before the court and the concurrences indicate the courts indicate laws against premarital sex are fine. they said that in griswold. if connecticut had gone forward with the rights of single persons, connecticut might have said we do have an interest in dampening the willingness the -- willingness of single persons to have sex outside of marriage. caller: the only planning decision appeared to belong exclusively to women.

privacy belongs to mainly women because of this griswold case. doesn't that take husbands out of family planning decisions? and doesn't that mean that men are removed from a vital part of the marriage life? >> there is so much there, let me try to be brief. because birth control has been made for women and not men, rights to use it have been a right that has been handed to women. when they try, and you can read from time to time, mother jones had an article a few years ago. there was one in the new york times not too long ago. when they tried to do birth control for men, men say they do not like the side effects so they stop the trial and do not proceed with it. when women don't like the side effects they keep going with the trial and put it out. with regard to men, the question of men's rights did not really come up in contraception because

so much of this was about the pill when it was invented. men's rights, vis-a-vis families they come up when parents are thinking about choosing schools for their kids, or custody, or in the lawrence case, which we will discuss shortly about two men and rights to have a sexual relationship, but in terms of family planning, contraception and abortion, because it has been set up by the pharmaceutical companies and because women are the ones who bear children, it has been put as a woman's right. >> can i add that because of what helen said, there has not been a male pill established. condoms are an effective way for men to control contraception. they are always available. always available to men. i think it also bears mentioning that many of the laws that place morals were attempted to police

women sexuality and women's sexuality in family formation, legitimacy, and other related issues. extension of privacy rights to striking down laws that policed that sexuality had consequences. >> it went to the supreme court and was heard in 1965. here is a look at the court. the eisenhower appointees included the chief justice world -- chief justice rren there were roosevelt , appointees. hugo black. a truman appointee, tom clark, and kennedy appointee mr. white and arthur goldberg. we are going to listen to thomas emerson's predecessor.

you mentioned earlier that a yale law professor has headed a -- had initially headed up a presentam to present -- connecticut's case to the court. he took sick and ultimately passed away. that is when thomas emerson came into the case. we have this for you to listen to. >> the current case is, the case of dr. buxton and mrs. goodwell, -- griswold, the two are that are being convicted as accessories for advocating contraceptive device. not only involved with due process laws, i like to advise people with privacy. dr. buxton claims of this law from practicing his profession according to scientific principles and his own

conscience. there is also involved a problem of freedom of speech under the first amendment, which prohibits congress and the states from passing any law abridging freedom of speech. certainly, one of the most intimate and sacred relations of life is the relation of a man and his wife in the privacy of their own home. when the long arm of the law reaches into the bedroom and prohibits a man and his wife from doing what they want to do and what medical suggests they do, it seems this is in invasion of the freedom and liberty of the citizens of this country. >> that is an outline of the thinking of the connecticut defendant in the case. there is something called a rational basis test that the court cap apply to laws. since connecticut and massachusetts are the only states that have it, why did they go so far as to develop

this legal framework? >> earlier, rachel spoke of the state's police power. the state has the right to make laws that govern health safety and welfare morals. , if the state makes these laws, ordinarily, a court takes a look at them and says, this is -- is this rational? is it related to a state interest for healthy welfare? it is fine. it is when a law touches a constitutional right that the court says now we will take a harder look at it. a little harder look today if it involves a distinction between men and women. a really hard look if it has a race distinction and a really hard look if it touches upon a fundamental right. those fundamental rights, some are in the bill of rights. griswold said some of them are not, but they are still fundamental rights.

those nine members of the court can tell you what they are. this is what planned parenthood of connecticut wanted. they wanted the court to say it was a fundamental right and they will take a hard look at the states limiting it. >> it was interesting listening to the 14th amendment, process laws, freedom of speech, the first amendment. how did it coalesce into the direction it went? >> planned parenthood argued that all of those amendments had aspects of privacy that were fundamental to life and liberty. in their briefs before the court, they said these things. there are various amendments for the bill of rights. the fourth, the fifth, the ninth, the 14th, all of which appear in douglas's opinion. it protected the privacy of the home and the privacy of the marital relationship.

those amendments said something about marriage in the homes that was different than other regulations that could pass the laugh out loud tests. a rational basis review in which if the state had any reason for passing the law, it will stand. in this realm of private decision-making and personal relationships the state has to , have a better reason. joan from fort myers, florida. you are on. caller: it occurred to me when i was watching this, why when it , comes to both contraception as well as abortion, did no one say this is a violation of the 14th amendment and a form of slavery by taking away the rights of a woman to control her own body? it is of particular interest to me because i gave birth for the first time in 1966. this is very meaningful to me.

>> anyone follow that legal argument? >> i have heard that argument made legally and in ethics or philosophy terminology. i have heard some people refer to the united states as original sin as slavery. slavery and the law regarding that in the law after regarding jim crow and the law today on racism and discrimination have really got their own niche. we don't tend to cross over between sexual expression or slavery. it is a thing in itself but does not get used in other categories. >> we know that thomas emerson was part of the legal team. what happened to katie? was she a part of the team? >> she was but she did not argue the case. she was on the brief. i think there was conflicting

evidence about what happened in her role. from what i read, she remained part of the legal team working on the strategy, writing the brief and supporting emerson who delivered the oral argument. connecticutents in that she was making followed through to the supreme court brief. to the extent we have evidence of her role there was similar arguments. ina word about the court 1965. where was it in its long history of expansion of rights? >> towards the beginning, to the great surprise of the republicans who had appointed warren, you have also got harlan who was appointed by eisenhower to the great surprise, many many people his opinion is there are non-textual rights in the constitution. i would not call it the heyday

of what people commonly called the warren court, with republicans making decisions that now would be called liberal. this was toward the beginning of that period. >> what were your observations about the warren court that people should know? >> i think that commentators of the era were surprised by griswold because the warren court, so many of its landmark cases involved criminal justice, rights of free speech, poverty, entitlements by the states, but it had not been issues related to marital privacy or sexual expression. i think griswold, in some ways, is of a kind in the debate that helen describes between orerring to legislators taking a harder look at legislation as judges when it touches on fundamental rights. that was there. this, i think griswold stands

apart from other notable war in cases -- warren cases. >> another tweet about the catholic church. there were noted exceptions that were allowed for the use of contraception whereas , connecticut seemed to outlaw even exceptions. >> even today, it is the 50th anniversary of it. the exception was when it was being used for the mother's health. when it was used to treat something but it was not used for contraceptive purposes. connecticut did not say that there was all this confusion. it comes up among the justices in the states and records. it seems nobody is getting in a way of use of contraception for disease, but there is no law that says it is ok. it is really as rachel indicated, people doing what

they could get away with until they eventually decided to push this law in the face of the authorities and get the -- get it decided. a interesting aspect of the legal side, connecticut, the supreme court of connecticut ruled there was no exception for health, but the abortion law in connecticut did allow abortions for the life of the pregnant woman. the abortion law was more liberal, or less restrictive than the birth-control law in 1965. >> we are in the era now or -- now where there are audio recordings. after they are made, they go to the national archives. joseph e clarke was the attorney arguing for the state of connecticut. do any of you have biographical information?

>> i think he was in the attorney general's office for the state. this was his only case before the court. let's listen to how he fares in a exchange with justice potter stewart. >> mr. clark, what you are touching on leaves me to ask, what is the purpose of this legislation. your basic argument is that this is well within the so-called police power of the state of connecticut. what is its purpose? >> i think its purpose -- >> to increase the population of connecticut or decrease? >> i don't think that this is a -- we could make this claim. >> what is the purpose? >> it is to reduce the chances

of immorality. i use the word immorality here in a broad sense. that is, in one way to act as a deterrent to sexual intercourse outside of the marital relationship. >> the trouble is, it is on this record this involves only married women. how can you make that argument? >> >> on this record, the statute is a valid exercise of police power. >> for what purpose? >> on this record there is a distinction, there has to be a distinction between birth control and the use of contraceptives. that is to say that all contraceptives involve birth control. in order to practice so-called birth control, one does not have

to use contraception. the state is able to take this position and take the distinction. should married people be allowed to use these devices? it is not the state going too far? i think the state can answer to that, that there are other methods available to married people. >> ok, my law professors. what are you hearing and that attorneys argument on behalf of the state law? >> i hear that no one, no justice and not even lawyers for connecticut believe that the law banning contraceptives for married, unmarried, but for married in particular was any good at deterring people from extramarital sex. it seems that no one is buying that argument. that is what you really hear in the conversation. you say that is what that state law is meant to do. is it doing it? clark argues later in his

argument, this is a question of power. does connecticut have the power to enact moral legislation? even if you do not believe that we are accomplishing the goals that we set out to as a state. is it that we have the power to pass this law? >> what strikes me is that by the time he got to the supreme court, he was not able to articulate this. this is the question for me that goes to any lawyer coming before the supreme court. he should have this very ready. he could've made the argument that we do know -- there is this law and economics literature on contraception and sexual expression. we do know that people think when a risk is insured against they will do more of the risk. , he could've said, i know it only applies to women, really, because they are only making birth control for women. it is not about trying to reduce

extramarital affairs by both parties but maybe it will reduce them among women, and the men they might be sleeping with who are not their husbands. it is not something people would love to hear today, but at least it would've had more rationality. i am really struck by his inarticulateness at the point of the supreme court. >> joe on twitter says, clark, the poor guy tried to argue against it in landmark cases and goes on to remind us. justice stewart dissented. the guy looks lame here. aboutyou could talk justice stewart's conclusion that he ended up coming to even , though he was really questioning the fundamental of the law. >> justice stewart apparently had a strong preference for federalism, for the power of

that are enact laws within health, safety, welfare. the more likely answer is that he believed in what rachel talked about as the argument of attorney clark who says, a think -- i think this will prevent immorality, he could not articulate how, but justice stewart thought it was very dangerous down the road with justices sitting in a super legislature making laws for connecticut when they should be making them for itself. >> justice stewart is famous for -- famous in this case for calling the law silly. it is apparent in that line of questioning, but he wrote and was concerned about going back to the days of lochner. >> he's in one of the landmark cases. >> the connection between lochner is? >> new york had regulated the hours that bakers could work.

landmark cases viewers would know. the supreme court struck it down as an infringement on liberty, the right to contract. that thelly after this court refuses to use his power under the 14th to strike down these economic regulations based on due process arguments about the wisdom of state regulation. the post-lochner era, he is writing about the court's concern that it stay in a post-lochner moment. >> is really interesting how when planned parenthood was arguing this case in the brief, it said we're not going back to a time when a supreme court can strike down state laws

regulating minimum wage. don't worry, we all know that is bad. we think we threaded the needle by saying states can improve the quality of life for people who limit their hours, up their wages, passed laws on it. they cannot restrain fundamental rights. you see the brief trying to thread that needle. lochner was a very dirty word in those days. when stewart says we're going back, that is very resounding. >> we have a half an hour left to go in this edition of landmark cases. we're talking about griswold v. connecticut a planned parenthood , 1965. case by which they established the right to privacy. in our last half hour we will talk about the decision and the framework that it established that has led to decades of expanding privacy and rights for americans as a result. lots more time for your phone calls. the phone number is on the screen and you can send us a

tweet as well. i'm going to take a call and we will go back to the decision. mark, you are on the air. caller: i just have one question. a.e penumbr i don't think many of us familiar with the law know too much about it. we vaguely know what the constitution means. i am curious if you could explain a little bit more about the right to privacy and all the rights that come under the bill of rights with the penumbra. i also wanted to mention, griswold v connecticut, if you really look at it, even though a lot of us are not legal scholars, it seemed the court did the right thing. they looked at a personal person's right, the right to privacy, and they made a good judgment in my view, and i believe many of my friends and colleagues believe they made the right decision.

i know we've got different people with different preferences and religious freedom that is kicking up. i do not like that because i think we should all have a individual rate, not push our rights on others. i wonder if you could touch base on our rights that people should not be able to push, even though it is our rights, we should not be able to push it on to others. can you touch base on that and explain that? >> let me get into the decision. he really teed it up with those questions. june 2, 1965 was the date the decision was handed down. our producer reminds us that is the same day that the gemini astronauts returned to earth. it was a seven-to vote for the majority. seven-two there is a

vote for the majority. breakdown of the majority and the two justices. here is a excerpt of william douglas's opinion. so, take us down his legal reasoning. >> this will answer the penumbra's question. what he says is, there are attacks that provide constitutional or fundamental rights to contraception. he says there is a right of privacy that it is part of, even if it is not explicit in other amendments in the constitution. he says it is free speech, but we stayed is freedom of association, which is a privacy thing. take us down his reasoning.

in the right not to have your right nothed, in your to quarter soldiers except under particular circumstances. all of this speaks of a right to privacy. he even mentions the ninth amendment, which he says reserves certain things to the state that are not taken by the federal government. he says the right of privacy is not in any of them. if you look at the other elements of the bill of rights that i have mentioned, there are penumbras. there are things without which the explicit rights are not really strong enough. i am going to say that the right of privacy is in that fuzzy penumbra coming out of some of the first of the eight amendment rights.

>> would you be kind enough to define the word penumbra for people watching? >> justice douglas was ridiculed for using the term penumbra, are you a latin scholar? the idea that there is a shadow cast by the amendments that concludes a privacy interest that makes the first third, fourth, fifth, 15th, do not make sense without some privacy background. privacy in the shadows lurching forward into the daylight. >> so a yale law professor has a book on the constitution. he describes douglas's arguments as strained. he went on to say that john marshall harlan the second, who

is a noted constitutional conservative, made a more rational argument saying that america's basic practices render connecticut's oddball law unconstitutional. >> there are a couple of things going on. one was when we talked about lochner. it seemed that douglas did not want to find a right in the 14th amendment for a liberty that people had that could cast down, that could strike down state laws. why? because that is what lochner did. one, he is probably trying to avoid putting it in the 14th amendment like harlan did because he wanted to avoid lochner. number two, he might have been afraid of going too far. he wanted to start with things that were definitely in the constitution and say there is a firm tie. harlan makes this argument, relies on well loved cases.

peirceersus nebraska, versus society of sisters. of course parents have a right to teach their children german. of course parents can decide if their children go to a religious school. harlan says, in the past this court has found that people have rights that are not in the constitution. we did it through the 14th amendment. those cases are popular, i don't see why we can't put a right to contraception alongside them. >> let me go on to justice black. we had already talked about potter stewart's dissent. this is language from justice black. justice black is sometimes called the original originalist, scalia got to the court.

their evil qualities they see in the law make it unconstitutional. what is he saying? black is focused on this debate we are having about the textual nature of rights, the originalist position. he says, there is no fundamental right to privacy because the constitution only speaks of constitutional provisions designed to protect privacy at certain times with respect to certain activities. justice douglas, if his argument howtrained, it is because can you show that a law on married persons and use of contraception's helps protect and uphold the third amendment or the fifth amendment of right against the culmination? there is a gap there. it is a gap we are trying to

fill that does not make sense in light of a textual approach to the constitution. he is also famous for saying he liked his privacy as much as the next person. -- that without it hearing without adhering to the text of the constitution, the court becomes a day-to-day constitutional convention. a super agency that sits in judgment over the legislator. >> let's listen to the current justice, elena kagan and unsuccessful reagan nominee talk about their views of the griswold case. >> what i objected to was the way which this right of privacy was created. that was simply this. justice douglas observed that a number of provisions of the bill of rights protect aspects of privacy, and indeed they do and indeed they should.

he went on from there to say that, since a number of the provisions it did that and since they had emanations, but -- by which i think he meant buffer zones, he would provide the penumbra which created a new right of privacy that existed where no provision of the constitution applied. >> i think that the griswold and the holding in griswold does have grounding in the constitutional text. the way most justices have thought about this is that the 14th amendment, the due process clause guarantees liberty. ,when it guarantees such liberty it means more than freedom from , physical constraints. it also guarantees more than procedural protections. there is some substantive protection of liberty that is incorporated within the 14th

amendment of the constitution. >> we will move from those arguments, which we have been talking about, to reaction around the country. the new york times front page, june 8, 1968, they find connecticut law invades privacy. two the washington post, a birth heard in wedlock held legal. they void law barring contraceptive. now let's spend time on griswold's legacy. first of all, the people. what shall we know about griswold, dr. buxton or attorney emerson? what happened to their lives after this case? >> in the case of griswold, she ended up in a dispute with planned parenthood and it was largely over where the clinic should be and could she lived -- live in the gatehouse and take her husband there? she left because of a dispute.

she was a vocal supporter of women's rights to through the end of her life. contraception she died maybe in 1981. she lived a long 81 years. >> eventually, the state of connecticut put her in their hall of fame for accomplishments of people in the state. buxton took a leave of absence from yale in 1965. just says the case was being heard. he lived until 1969. mr. emerson continued teaching at yale law school and died in 1991 and never argued another case for the supreme court. we have mentioned a few times that this started a number of cases. the next one was 1972. here is a excerpt from that majority opinion. privacy meansf anything, it is the right of the individual to be free from unwarranted governmental

intrusion. connecticut did not want to go too far so they put their foot in the pond or hope that the court would would continue -- would continue. what was happening in society, or in the court that they moved on to this broader expansion of all people having the rights to contraception? >> everything that adds up to the words of the sexual revolution. the idea that single persons were likely to have nonmarital sexual relationships. the argument that wouldn't it be better if they use contraception and did not get pregnant. bill baird would go to catholic university campus in washington, d.c. and handed out there to try to provoke a controversy. there were public spectacles on the topic. there was the emergence of the sexual revolution among younger

americans. >> there are cases that have been heard and decided by the supreme court. in it was the framework for roe -- roe versus wade, a issue we are still debating in society today. harry versus population services international, 1977, which found that birth control was legal for those at the age of 16. lawrence v texas, which was the sodomy ruling and in 2015, the gay marriage case. walk me through what is happening in the court and in society and how they continue to use this case to expand rights. >> griswold becomes important culturally and legally. culturally, as helen mentioned, sexual ideas are changing. women's roles inside and outside marriage are changing. technology around reproduction changing.

there is an evolution in reproduction and decisions around sexuality that are reshaping the u.s. story for families and for gender. as a matter of law, griswold is interpreted in this line of cases as providing an anchor for substantive due process. there are rights that are fundamental to people that are not explicitly enumerated in the constitution, but nonetheless, states may not violate. you see that in row, upheld in roe v. wade, establishing a right to abortion. in the 14th amendment constitutional right to privacy. ,the trimester system is repealed in planned parenthood versus casey. those link back to griswold in the debate. just a couple of quick

points. when the court later talks about griswold, today you would not know it was not a 14th amendment due process case. they often treat it as that. number two we went from the right of privacy inside a marriage, inside a marital bedroom to the right to make important decisions in your head. these include rights regarding sexual expression. sexual expression becomes more finally, and more separated from community, from the fact that it is where children are created, from the fact that it might be -- it does or does not take place in marriage. it gets separated from that and it becomes a right to express yourself the right of identity. ,you see the substantive due process right morphing in lawrence. finally to a right to establish your identity. it went a long distance from where it started inside the

marital bedroom in griswold. >> justice kennedy's language could easily have been listed -- lifted from griswold. as much as there was an individual component to the decisions people make to marry, express themselves a sexually, to have an abortion or to seek is alsoh control, it about community, a community of people trying to raise children and seeking to express love and do it within the confines, or the institution of marriage. >> the court itself is undergoing enormous changes. can you both talking about what is happening in the courts. >> when we were looking at bork, rachel reminded me that kennedy was the justice who ended up being appointed at that time. kennedy is the swing vote. -4. court seems to be 40-

it will be in the way that griswold would say so. the court could shift in the next couple of years. the right of contraception, the constitutional right of abortion were affirmed and not overturned. happens to the court in the near or distant future i , do not see griswold going down. i see it being spoken of as if it was the 14th amendment substantive due process case. it might bepossible part of a shift in the court that might change this. >> we have now seen decisions from the current court, which has changed since these decisions that suggests it is not clear what the future holds. certainly, a big change since the court of 1965. cases like women's health, cases

like hobby lobby, which i think we will talk about if we have time. that suggest the court is wrestling still with the issue of contraception. two employers have to contraceptives for their employees under the affordable care act if they have certain religious beliefs? canned a sedate -- can a state decimate a reproductive health infrastructure without any health reason and placing undue burdens on people in that space for women's health? no. it is a complicated picture. >> more fundamentally, the court is still fighting over how do you find a non-textual constitutional right? some of the language we found in griswold is still bringing around. all these years later the fight is as hot as it was then. >> on facebook they make the 10th amendment argument that the

the court does not have the right to do this. it says that the federal government needs to defer to the states for all things not enumerated. >> i think that that is almost akin to the ninth amendment that the court should protect people's interest, that people retain rights not explicitly mentioned in the constitution. that justice goldberg was trying to make in his concurrence. that argument also has not had much in the way of legs. it suggests states have all the power and courts of all the power is to get wrong what our balance of power should be between courts and between state legislators and federal governments. we have a separation of powers

they keep any one entity in check. that is an important part of our democracy. >> that argument has not had legs. here is as far as i think the court might be pushed. at some point, you might have a majority of justices that say show me the history and , tradition where this right is embraced by the country. other justices will say, we can name broader justice. i have never seen the 10th amendment argument get legs. caller watching us in arlington, virginia. i was thinking about the retirement of justice kennedy. with your reduction in the due process argument when it comes to protecting privacy rights? >> it is hard to know. there are strong precedents now

that support the substantive due process approach to the right of privacy to entangle, to disregard all of them would be a change at this point. i don't think it is as easily undone as we suspect it could be just by the retirement of one justice. would it shape future cases and future interpretations of due process protection? undoubtedly. we see that with appointments. but revolutionize the due process doctrine, i think that would take more time. >> this is a good time to play our last clip. the griswold decision is one of the most frequently asked about for potential supreme court justices going through the senate confirmation process. let's show you a clip from the most recent one. neil gorsuch when asked about it in his confirmation hearing.

>> griswold held that the 14th amendment due process liberty cause provided a right to married couples to the use of contraceptive devices to the use of privacy in their own home. eisenstadt extended that to single persons. they have been settled for 50 years, nearly, in the case of griswold. there are interests that are obvious. they have been reaffirmed many times. i do not see a realistic possibility that a state would pass a law, attempting to undo that, or that a court of the united states would take such a challenge seriously. it inn you hear him frame that way, what are you hearing? >> i am shocked. that he misstated the holding of griswold. he said it was the liberty clause and it did not. the majority did not. second, he is -- i hate to use

that blatant word, the question, do you think what the court did was correct by stating what is undoubtedly correct, you're not going to see this, so please don't worry about it, it will never come to me. >> what did you hear? >> i heard the same and i also heard that the holding of griswold as is there a right to privacy, is there not? is it enumerated, is it not? this is an interesting conversation about what is limiting about this decision in other ways. a right to privacy does not guarantee any individual the right to gain access to those services. it does not fund public or private clinics at a higher rate. it does not speak to the quality in the ways that we have discussed. i found his answer -- my reaction is, that would i would expect a supreme court justice

nominee to say. >> because it leaves the door open? >> it leaves the door open. >> for other cases to come which are outside that narrow framework. >> you're going to be our last color. -- caller. caller: i grew up in north haven and i remember at 16 years old driving by that planned parenthood center. they had religious women -- i don't know if they were -- they were not nuns, but they were people performing a prayer service of -- on their knees on the sidewalk. i wondered if that -- it was 24 hours a day for weeks. i wonder if that affected the case positively or negatively? >> from a historical perspective, when you do teach about this what do you tell your , students about the societal frameworks? >> i usually talk about the

technology of the pill and what a gigantic cultural moment that was. i usually talk about the laws on the books that forbade cohabitation, adultery, nonmarital sex. the pill came into and the griswold case came into a pretty conservative country on sex. i did not know about the protesters or the prayers outside the clinics. i usually talk more about the pill and the technological and cultural moments. >> and what do you tell your students? >> i often teach griswold as part of a family law course. i tell my students a little bit about the parenting cases, the sterilization cases that came before griswold that helped convince other justices in griswold that there was a fundamental right to privacy. i do that because i think it

gives them background to the ways in which we thought about parenting marital intimate relationships as something that needed a closer look. that helps make sense of some of the cases to come. and what are the limits to that? that there are state interests. there are fortification walls, -- fortification laws adultery , laws. those are constitutional laws. those still exist in states. they do not exist in the number that they had in the past, but states still have a considerable amount of leeway in protecting the health, safety, and morals of its population. >> there are a dozen state and many statutes that do speak directly to the right of privacy. it sounds like there will be continued challenges.

>> my students say, when they have taken griswold and the cases that came after, they say i did not know this was a constitutional law class, i thought this was family law. i say, we are going to follow this fight over what is due process and the rights that the liberty clause of the 14th amendment provide. we will follow it right up to today. griswold is the place where you first get the interesting roiling in the family law context. >> that is a great place to leave it. thanks to both of you for being at the table. thank you to the national constitutional center. we have many more cases to cover. we have a booklet we have put there are 12 in the series. together that has a synopsis for each case. you can find on our website at c-span.org landmark cases if you like to learn more. thanks for being with us tonight. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org]

♪ announcer 1: monday on landmark stateskatz v. united where charles cap a you -- charles katz was transmitting illegal bets from a phone booth on sunset in los angeles. the supreme court's decision in this case expanded americans rights to privacy under the fourth amendment and forever changed the way law enforcement

officers conduct their investigation. our guest to discuss this case are jeffrey rosen, president and ceo of the national constitution center in philadelphia and jamil jennifer, founder of the national security institute and director of the law and policy program. they spoke at the george mason you set of -- university antonin scalia law school. our #landmarkcases, and follow us @cspan. we have background on each case. a landmark cases comparison book, following a link to the and the landmark cases podcast at c-span.org/landmarkcases. minutesnews program 60 is marking its 50th anniversary. correspondent bill whitaker and executive producer jeff fager sat down